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Supreme Court addresses protective orders

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The Indiana Supreme Court released two opinions today regarding the service of protective orders to respondents.

In Richard Joslyn v State of Indiana, No. 49S04-1102-CR-85, the Supreme Court held that a “minor defect in the service of a protective order was cured by (Richard) Joslyn’s statements to police and his testimony at trial.” Because of this, the court affirmed Joslyn’s convictions of Class C felony stalking and four counts of Class A misdemeanor invasion of privacy, which were all based on violations of the protective order.

In Jeffrey Tharp v. State of Indiana, No. 49S02-1005-CR-256, the court reversed Jeffrey Tharp’s conviction of invasion of privacy. In that case, the court wrote that “proof of knowledge must be beyond a reasonable doubt. The evidence of oral notice in this case, however, is insufficient to sustain Tharp’s conviction.”

Joslyn claimed he was not properly served with his protective order that had been filed by Stephanie Livingston. A deputy with the Marion County Sheriff’s Department served Joslyn with a copy of the protective order by attaching it to a door at his home. However, under Indiana Trial Rule 4.1 (B), a copy of the order was also to be sent via first class mail. There was no indication this took place.

But at trial, the court admitted a recording and transcript of Joslyn's statement to police where he stated he knew there was a restraining order and that he found it at his residence, even if he was somewhat unclear regarding the date the order was received. The incidents in question, including a note left on the front porch of the home where Livingston was staying, four broken windows to Livingston’s friend’s vehicle, and Joslyn hiding in the crawl space where Livingston lived, took place after the protective order was served.

“We agree with the Court of Appeals that Joslyn’s admission of receipt is sufficient to sustain his convictions,” wrote Chief Justice Randall T. Shepard. “As the court noted, the purpose of the Indiana Civil Protection Order Act is to promote the protection and safety of all victims of domestic violence and prevent future incidents. It would run contrary to this purpose if we were to embrace Joslyn’s contention that a defendant does not violate the criminal code because of some defect in civil process even where the court had in fact issued a protective order and the defendant in fact knew it had done so.”

Chief Justice Shepard also addressed the importance of protective orders to prevent domestic violence in the Joslyn opinion.

“The declared legislative intent that these provisions in the Code be interpreted in a way that will ‘promote the: protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and [the] prevention of future domestic and family violence,’” he wrote. “Joslyn’s proposed rule that one who acknowledges actual receipt at his home but not an additional copy by mail commits no violation would have real world implications placing far too many Hoosiers at risk of becoming a domestic violence statistic.”

In Tharp, however, it was not as clear as to whether the respondent was aware of the protective order against him.

When officers pulled Tharp’s car over during a traffic stop Feb. 16, 2009, they found the woman who filed a protection order against him on Oct. 1, 2008, Lisa Pitzer, and her daughter, among the passengers in the vehicle.

When officers ran Tharp’s information through a computer records check, they learned about the protective order, as well as the existence of an active warrant for Tharp for operating a vehicle while intoxicated, and that his license was suspended.

On Feb. 18, 2009, Pitzer filed a request for dismissal of the protective order and the court granted her request the same day.

At trial, Tharp denied he was ever served with the order or that Pitzer ever told him about it, and he denied that he told the officers that he was aware of the order. A return of service for the order indicated the service attempt had failed because he had moved.

In her testimony, Pitzer said she had told Tharp about the order when they got back together, a few months after she filed the order in October 2008. She also testified that she told him prior to the February 2009 traffic stop, but that she also thought she had the order dismissed prior to that time.

“…was there substantial evidence of probative value from which a finder of fact could find beyond a reasonable doubt that Tharp knowingly violated a protective order? We conclude that the mixed messages from Pitzer are oral notice of the type that is insufficient for a conviction. Put another way, the evidence is insufficient that Tharp received adequate notice of the protective order,” Chief Justice Shepard wrote.
 

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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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